Department of Employment, Training and Industrial Relations v Enright Bros. Pty Ltd [2001] QIRC 57 (2001) 167 QGIG 4

4 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 4 May, 2001 ######################################################################################################################### ## QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – unpaid wages Department of Employment, Training and Industrial Relations AND Enright Bros. Pty Ltd (No. W18 of 2001) COMMISSIONER ASBURY 23 April 2001 DECISION Wages Claim – Failure by employer to keep time and wages records – Evidence of applicant with respect to hours worked preferred – Evidence of respondent that applicant only paid while loading and unloading vehicle – Error in Transport, Distribution and Courier Industry Award – Southern Division in relation to hours of work for casual employees – Construction of Award which makes sense of the whole preferred – Case law on approach to construction of Award – Breach of Award proved – Applicant to re-calculate claim and forward to respondent and Commission – Discussions between parties to occur – Parties to attempt to agree on period over which payment to applicant to be made – Matter to be relisted after 28 day period for the purpose of issuing any orders required. Background This is an application by the Department of Employment, Training and Industrial Relations for an order under s. 278 of the Industrial Relations Act 1999 (the Act), that Enright Bros. Pty Ltd (the respondent) pay unpaid wages to Mr Neil Alfred Couchman. The uncontested facts in relation to this application are as follows:– • Mr Couchman was employed by the respondent as a casual Motor Driver’s Assistant under the terms of the Transport, Distribution and Courier Industry Award – Southern Division (the Award); • the respondent operates a furniture removal business at Lot 5 Altona Street, Kunda Park Queensland; • Mr Couchman was employed by the respondent from January 1983 until 10 June 2000; and • a claim was made by the applicant on 20 November 2000, which the respondent has rejected. Evidence and Submissions for the Applicant The evidence for the applicant, which was given by Mr Whitson of the Department of Employment, Training and Industrial Relations and Mr Couchman, can be summarised as follows:– • the Department has conducted an assessment in relation to wages paid to Mr Couchman using records from a diary maintained by Mr Couchman and wages slips; • this assessment has shown that Mr Couchman has been underpaid and the amount of such underpayment for the six years preceding the making of the application is $12,543.45; • the assessment has been conducted with reference to the terms of the Award that applied during the relevant period; • the assessment also took into account a claim for Mr Couchman to be paid a furniture handling allowance, under clause 3.4(3) of the Award; • the diary entries kept by the applicant in relation to hours worked, have been preferred by the Department on the basis that the respondent has failed to keep (or is unable to produce) time and wages records, as required by the provisions set out in Division 3 of Chapter 11 of the Act; • the Department has taken the view that the Award is silent in relation to ordinary hours of work for casual employees and accordingly does not regulate this matter; • this view has been taken on the basis of a decision of an Industrial Magistrate, to the effect that there are no ordinary hours of work for casual employees, in cases where a relevant award appears to be silent on this matter; • the Department has calculated the claim for underpayment on the basis of the provisions of s. 9 of the Act which deals with general employment conditions in relation to working time, as these provisions are said to regulate this issue in the absence of a specific award provision; • Mr Couchman had kept personal diaries which he used to record his hours of work, from 1994 to 1999; and • Mr Couchman had recorded his hours of work while away on trips, and on his return home, had transferred those hours into the relevant diary. Mr Whitson submitted that the evidence before the Commission indicated that facts were not in dispute between the parties, and that the only dispute was in relation to the diary entries. It was submitted that the Commission should prefer the evidence of Mr Couchman in this regard. The evidence of Mr Couchman was said to be preferable, on the basis of the concession by Mr Enright in his evidence, that the diary entries of the respondent reflected only time spent by Mr Couchman loading and unloading, as that was the basis of payment to him. Mr Whitson also submitted that Mr Couchman had been put in the position of having to keep diaries, through failure by the respondent to keep time and wages records in accordance with the requirements of the Act. Mr Whitson said that the proposition in Ray v Radano (1967) 67 NSWAR 471 at 480 per Sheldon J that “ . . . an employer who neglected to keep statutory records, which in their probative effect, were as much a protection to himself as to the employee, deserved little sympathy if he lost in a battle reduced to oath against oath” was applicable in this case. It was submitted that the arrangements with respect to payment adopted by the respondent, had lead to an underpayment in terms of the Award, and that the Commission should order payment of the amount claimed to the applicant. -- 1 of 4 -- 4 May, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 Evidence and submissions for the Respondent Evidence for the respondent was given by a Director, Mr Gary Enright, who also conducted the case for the respondent. Much of the evidence of Mr Enright was irrelevant to the determination of whether there had been a failure on the part of the respondent to pay Mr Couchman the wages to which he was entitled under the terms of the Transport, Distribution and Courier Industry Award – Southern Division. However, the following relevant facts did emerge from the evidence of Mr Enright:– • an arrangement had been adopted by the respondent of paying Mr Couchman a flat daily rate, on occasions when he was required to undertake a trip which the respondent classified as distant or interstate; • this daily rate was calculated by the respondent and agreed to by Mr Couchman; • the daily rate was structured so that Mr Couchman was not paid for what the respondent viewed as non working time, including time spent travelling, refuelling and when the driver of the vehicle was on the telephone receiving instructions from the respondent; and • Mr Couchman was only paid for time spent loading and unloading the vehicle. Mr Enright conceded that the fact that Mr Couchman was only paid for the time spent loading and unloading the vehicle, could explain the discrepancy between the time and wages records kept by the respondent and the diary records kept by Mr Couchman. This was because Mr Couchman’s diary records showed actual time from the start to the finish of work on a particular day, including time which the respondent considered to be non working time. Mr Enright submitted that Mr Couchman had accepted employment on a voluntary basis, at the rates offered to him. Those rates were what the respondent could afford to pay, and were acceptable at the time. The respondent was not aware that the arrangements adopted with respect to payment for interstate and distant trips, were contrary to the terms of the Transport, Distribution and Courier Industry Award – Southern Division, or that any failure to keep time and wages records in accordance with the Act had occurred. The respondent also said that he was not aware that the Award provided for a furniture handling allowance and conceded that this had not been paid to Mr Couchman. Conclusions I do not accept the contention of the applicant, that the Transport, Distribution and Courier Industry Award – Southern Division, does not regulate ordinary hours of work or provide overtime payments for casual employees. It is the case that clause 4.5(4) of that Award states that the ordinary hours of work for a casual shall be in accordance with clause 3.3 (Wages and Hours). Clause 3.3 provides only for wages and does not deal in any way with hours of work. However, that is not the end of the matter. The principles of statutory interpretation should generally be applied in interpreting awards. As a general principle, an award should be interpreted consistent with those principles so that as far as possible, words or sentences are not superfluous, void or insignificant. (See Project Blue Sky v ABA (1998) 194 CLR 355 at 382 per McHugh, Gummow, Kirby and Hayne JJ referring to the decision of Griffith CJ in The Commonwealth v Baume (1905) 405 CLR 414) who had cited the statement in R v Berchet ((1688) 1 Show KB 106 [89 ER 480]) that it was “a known rule in the interpretation of statutes that such a sense is to be made upon the whole that no clause, sentence or word shall prove superfluous, void or insignificant, if by any other construction they may all be made useful and pertinent” and Isaccs and Rich JJ quoting from Broom’s Legal Maxims, 9 th ed., pp. 367-368, in The Metropolitan Gas Company v The Federated Gas Employees’ Industrial Union and Another (1925) 35 CLR 449 at 455: “In construing an instrument every part of it should be brought into action, or in other words construction must be made upon the entire instrument, and not merely upon disjointed parts of it…the whole context must be considered … although the immediate object of inquiry be the meaning of an isolated clause …”). It has also been noted that the steps to be taken in interpreting awards are sometimes, of necessity, different to those taken in the interpretation of statutes. In this regard it is possible to look behind the terms of a disputed document and to look at the history of the matter and documents proceeded it in order to interpret the provision. This approach is consistent with the decision of Bloomfield, C in AWU v. James Hardie Austrlaia Pty Ltd, (D393 of 2001, released 20 April 2001), which referred to Kucks v. CSR Ltd (1996) 66 IR 182 in particular the following statement of Madgwick J at 184:– “Legal principles It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand. But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”. Consistent with this approach, a number of other clauses in the Award need to be considered. Clause 3.1(1) provides that “Casual employees” – shall mean an employee who works less than 38 hours per week. Casual employees are not entitled to annual leave or sick leave, but are entitled to long service leave calculated in accordance with the Industrial Relations Act 1990, (now set out in Part 3, Chapter 2 of the Industrial Relations Act 1999). Clause 4.1 (Hours of Work) provides that subject to subclause (3) and to the exceptions hereinafter provided, the ordinary hours of work shall be an average of 38 per week. The clause goes on to detail a number of bases upon which ordinary hours may be worked, and other provisions dealing with spread of hours, payments for work on weekends and other provisions generally relating to the working of ordinary hours and the implementation of a 38 hour week. Clause 4.1(5) which deals with method of payment for ordinary hours, contains a specific exclusion for casual employees. This exclusion is necessary, because the method of payment for casual employees is dealt with separately in clause 3.3(5). Other than the exclusion in 4.1(5), there is no indication that the remaining provisions of clause 4.1 do not apply to casual employees. If casual employees are generally excluded from the application of (Hours of Work) provisions in clause 4.1, then the specific exclusion of casual employees from clause 4.1(5) is superfluous. -- 2 of 4 -- 6 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 4 May, 2001 The failure of an award which provides for casual employment, to regulate the hours which may be worked by such employees at both ordinary and overtime rates, would be highly unusual if not absurd. Such a failure would also create unfairness for casual employees. These criteria justify a departure from a literal reading of clause 4.5(4). Further, an examination of the history of the Award, indicates that clause 4.5(4) contains an error. The Carting Trade Award – Southern Division, which was the predecessor to the Transport, Distribution and Courier Industry Award – Southern Division, as far back as 1969 (71 QGIG 295 at 300), provided at clause 8 – Casual Hands as follows:– “(3) A casual hand shall have the same starting and finishing time and shall work the same number of hours per day as a weekly hand in any particular section as above set out.”. The Carting Trade Award –Southern Division was varied in 1991((1992) 139 QGIG 77) to provide at clause 9 – Casual Hands that:– “(6) the ordinary hours of work for a casual shall be in accordance with clause 6 (Wages and Hours).”. At this time, the casual provisions were significantly varied, as a result of the then Structural Efficiency Principle of Wage Fixation (see decision of Dempsey C in Carting Trade Award – Southern Division (1991) 138 QGIG 1188). It is clear from the 1991 variation, that both hours of work and wages provisions were set out in clause 6 of the Award as it was at that time. With effect from 16 August 1993 the Carting Trade Award – Southern Division was rescinded, and replaced with the Transport, Distribution and Courier Industry Award – Southern Division (see (1993) 144 QGIG 885). The new Award incorporated the final variations arising from the implementation of the Structural Efficiency Principle of Wage Fixation, and a 38 hour week, granted by a Full Bench of the Commission on 7 July 1993, but given a prospective operative date of 1 September 1993 (see (1993) 143 QGIG 439). It is clear that in the process of restructuring the Award and varying it to provide for the implementation of a 38 hour week, the provisions dealing with wages and hours of work, previously contained in one clause, were split into two clauses. Notwithstanding this, the provisions of clause 4.5(4) dealing with hours of work for casual hands, retained only a reference to clause 3.3, and erroneously stated that this clause also dealt with hours. Following the 1993 variations, clause 3.3 no longer dealt with hours, due to the establishment of a new clause 4.1 dealing with that subject. Clearly, clause 4.5(5) of the Transport, Distribution and Courier Industry Award – Southern Division should be read so that ordinary hours of work for a casual employee are in accordance with clause 4.1 (Hours of Work) and not clause 3.3 (Wages and Hours). Such a reading of the Award would correct an obvious error and would be consistent with the principles of statutory interpretation referred to above. Pursuant to s. 265(1), “the Commission may hear and decide … all questions arising out of an industrial matter”, and, pursuant to s. 274(2)(b), “make a decision it considers appropriate, irrespective of the specific relief sought by a party”. In my view, although the approach I have adopted in relation to dealing with this matter is unusual, it is open to me in the circumstances of this case. Further, my determination that the Award provisions in relation to hours of work applied to Mr Couchman, does not impact on my decision about whether there has been an underpayment in terms of the Award on the part of the respondent. Had I accepted the applicant’s argument that the Award was silent with respect to hours of work for casual employees, and that the provisions of s. 9 of the Act should apply, I would have nonetheless determined that an underpayment in terms of the Award had occurred. The fact that the Award provisions in relation to hours of work applied to Mr Couchman, only impacts on the quantum of the underpayment. I have not given consideration to the decision of the Magistrate referred to by Mr Whitson, for the reason that it refers to sewing machinists, and clearly relates to another award. It is also clear from the transcript of the hearing before the Magistrate, that he did not have the benefit of any detailed argument in relation to the matter before making that decision. Further, the error in the Transport, Distribution and Courier Industry Award – Southern Division relates specifically to that Award and can be identified from its history. I find that this application should be dealt with on the basis that the hours of work provisions in clause 4.1 of the Transport, Distribution and Courier Industry Award – Southern Division were applicable to Mr Couchman at all times during the period covered by the claim of underpayment of wages. In terms of the substantive matters relating to the application, I accept the evidence of Mr Couchman with respect to the hours worked by him during the period covered by the application. After considering the evidence of Mr Enright, I do not accept his version of the hours worked by the applicant. I stress that I did not find Mr Enright an untruthful witness. His evidence simply demonstrated a misunderstanding of the requirements of the Award. Further, I do not accept the respondent’s argument that the agreement of Mr Couchman to the arrangements under which he was paid, gives some validity to them. By virtue of s. 135 of the Act, any agreement in relation to those arrangements between the applicant and the respondent can have no effect to the extent that it provides for employment conditions less favourable to the employee than a relevant award. Clearly, the respondent’s arrangements for payment to Mr Couchman for interstate and distant trips, provided for employment conditions less favourable to him than the Transport, Distribution and Courier Industry Award – Southern Division, which was the Award regulating the employment of Mr Couchman. I find that on each day identified in the application on which the respondent has paid Mr Couchman a daily rate for distant and interstate work, an underpayment in terms of the Transport, Distribution and Courier Industry Award – Southern Division has occurred. The applicant’s claim of underpayment of wages has been established in respect of each of these days. Notwithstanding these findings, there are a number of outstanding matters. Firstly, the issue of the application of the hours of work provisions in the Award, did not arise until the hearing in relation to this application was underway. Mr Whitson did not have a copy of the Magistrate’s decision to which he referred, and was not in a position to fully expound the argument about this issue. The respondent was also not in a position to argue this issue. Accordingly, I have determined the issue in the absence of any detailed argument from either party. At the hearing, I gave undertakings to both parties to allow them the opportunity to put further submissions in relation to this matter before any orders were issued. Secondly, Mr Enright indicated that in the event that I found against the respondent, he would like an opportunity to make submissions that a suitable period of time be allowed, to make payments to Mr Couchman. I advised Mr Enright that given the circumstances of this application, this opportunity would be provided to him at a subsequent date, and before any orders were issued. Accordingly, I make the following requests of the parties:– 1. Both parties are to advise the Industrial Registrar, within seven days of the date of the release of this decision, whether they wish to make further submissions in relation to the application of the hours of work provisions of the Transport, Distribution and Courier Industry Award – Southern Division to Mr Couchman, on the basis of his status as a casual employee. 2. Mr Whitson (or a representative of the Department of Employment, Training and Industrial Relations) is to re-calculate the underpayments to Mr Couchman in light of this decision, and to provide details to the respondent within fourteen days of the date of release of this decision. 3. Mr Whitson (or a representative of the Department of Employment, Training and Industrial Relations) is to have discussions with the respondent within 21 days of the date of release of this decision, in relation to the amount of the claim following the re-calculation, and attempt to reach an agreement on a system of instalments to be paid to the applicant. -- 3 of 4 -- 4 May, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 7 4. If the parties are unable to reach agreement in relation to the payment of outstanding amounts to the applicant, Mr Whitson (or a representative of the Department of Employment, Training and Industrial Relations) is to advise the Industrial Registrar, within 28 days of the date of release of this decision. In the event that the Industrial Registrar is advised that the parties are unable to reach agreement pursuant to point 4 above, this application will be relisted for the purpose of issuing orders. I.C. ASBURY, Commissioner. Released: 23 April 2000 Appearances:– Mr R.J. Whitson, for the Department of Industrial Relations. Mr G. Enright on behalf of Enright Bros Pty Ltd. -- 4 of 4 --